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Blatnik v. Berryhill

United States District Court, D. Oregon

June 26, 2018

TODD B., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Todd B. (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses the Commissioner's decision because it is based on harmful legal error and not supported by substantial evidence.

         BACKGROUND

         Plaintiff was born in May 1964, making him forty-eight years old on September 24, 2012, the alleged disability onset date. (Tr. 15, 27, 68.) Plaintiff has a General Equivalency Diploma and past relevant work as a service advisor. (Tr. 27, 42, 59.) Plaintiff alleges disability due to pancreatitis, as well as depression and anxiety. (See Tr. 40, stating that Plaintiff is disabled due primarily to “severe pancreatitis, ” which causes “severe abdominal pain, ” noting that Plaintiff's primary care physician has also “mentioned” diagnoses of anxiety and depression, and stating that Plaintiff's knee issues resolved after undergoing surgery, but the “stress from that surgery . . . really triggered the pancreatitis to kind of flare, and flare more often, and get worse”).

         On September 20, 2011, approximately one year before the alleged disability onset date, Plaintiff visited his primary care physician, Dr. Marc Moroye (“Dr. Moroye”), regarding his blood pressure and pancreatitis-related pain. (Tr. 252.) Dr. Moroye noted that Plaintiff's blood pressure was “doing okay, ” but he continued to smoke “about half a pack a day” and showed no sign of quitting “any time soon, ” that Plaintiff's anxiety was “stable” and “doing fine on his current Wellbutrin” prescription, that Plaintiff's pain level had “been high due to his chronic pancreatitis, ” and that he would continue to refill Plaintiff's prescription for oxycodone because Plaintiff's referral to a pain clinic “did not work out” and Plaintiff was “up-to-date” on his urine drug screens. (Tr. 252.) Dr. Moroye also “strongly recommended” that Plaintiff quit smoking. (Tr. 252.)

         On November 29, 2011, Plaintiff presented for a follow-up visit with Dr. Moroye regarding his pancreatitis-related pain. (Tr. 248-49.) Dr. Moroye noted that Plaintiff's pain waxed and waned, producing “good days and bad days, ” Plaintiff's anxiety and depression were “stable, ” and they would continue to treat Plaintiff's pancreatitis with medication because he was not interested in seeing a gastroenterologist again or “getting [more] blood work done.” (Tr. 249.)

         On September 24, 2012, the alleged disability onset date, images of Plaintiff's left knee revealed the following: “Degenerative joint disease [in the] medial compartment. Chondrocalcinosis of the menisci may reflect underlying calcium pyrophosphate deposition disease.” (Tr. 292.)

         On November 8, 2012, Plaintiff presented for a follow-up visit with Dr. Moroye. (Tr. 242.) Dr. Moroye noted that Plaintiff continued to experience pain and discomfort due to his pancreatitis, ” but he did not “feel the need to see” a gastroenterologist. (Tr. 243.) Dr. Moroye added that Plaintiff continued to suffer from left knee discomfort, recent images of Plaintiff's knee showed signs of a “previous surgery, ” but “there was nothing else that was necessarily torn in the knee, ” Plaintiff was “trying to wean himself” off pain medication, which Dr. Moroye felt “in the long run is a safer thing for him to do, ” and Plaintiff did not appear depressed or anxious. (Tr. 242-43.)

         On February 3, 2013, Dr. Moroye noted that Plaintiff continued to complain about “a significant amount” of pancreatitis-related pain, that he had to take Plaintiff “off the pain medications because he did fail his pain contract with [Dr. Moroye] by smoking marijuana, ” that he “knew” that Plaintiff was going to fail his pain contract, but Plaintiff “really found that the marijuana seemed to help even more than the medications, but he is still having a lot of abdominal discomfort, ” and that Plaintiff had not seen a gastroenterologist or had “any testing done on his pancreas” for “a couple of years.” (Tr. 241.) In addition, Dr. Moroye observed that Plaintiff underwent knee surgery earlier that year and “things [were] slowly healing up.” (Tr. 241.) Dr. Moroye ordered images of Plaintiff's abdomen and tests to check Plaintiff's pancreatic enzymes.

         On February 10, 2013, Plaintiff underwent a computed tomography (“CT”) scan of his abdomen based on complaints of pancreatitis-related pain. The CT scan revealed the following: “Minimal stranding of the fat between the pancreatic head and the duodenum, to a lesser degree than on previous study. This suggests mild pancreatitis, without associated complications visible.” (Tr. 286.)

         On March 8, 2013, Plaintiff visited Dr. Moroye regarding his blood pressure and signs of rectal bleeding. Dr. Moroye noted that Plaintiff did not complain of external hemorrhoids, Plaintiff was provided with a suppository because Dr. Moroye believed that he was suffering from internal hemorrhoids, Plaintiff was going to see a gastroenterologist at the end of the month, and Plaintiff “continue[d] to smoke medical marijuana, which obviously did limit what [Dr. Moroye] can do in terms of [prescribing] narcotics or sedatives” to treat any medical conditions. (Tr. 239-40.)

         On August 20, 2013, Dr. Moroye noted that Plaintiff's “GI actually came back negative, ” which caused him to question whether Plaintiff's intermittent abdominal pain was being caused by his pancreas “versus a different functional bowel issue, ” such as irritable bowel syndrome. (Tr. 236-37; see also Tr. 297, “From review [of] old records it appears that there is debate about whether patient's symptoms are caused by chronic pancreatitis versus irritable bowel syndrome or both.”).

         On May 7, 2013, Plaintiff underwent an upper endoscopic ultrasound, which revealed, inter alia, “[m]ild age related changes of the pancreas without evidence for chronic pancreatitis.” (Tr. 364.)

         On May 23, 2013, Plaintiff presented for a follow-up visit with Dr. Elliot Joo (“Dr. Joo”), a gastroenterologist. Dr. Joo noted that Plaintiff reported that he recently had “some wine which lead to severe abdominal pain for the next 3 days, ” he was not currently experiencing pain, that he “will go several months without any pain, and then be doubled over with pain for several weeks or months, ” and his constipation issues had improved “tremendously” on Miralax. (Tr. 350.) Dr. Joo diagnosed Plaintiff with “[a]bdominal pain of unclear etiology.” (Tr. 351.) Dr. Joo also stated that he suspected Plaintiff's “symptoms may be related to functional abdominal pain such as irritable bowel since [Plaintiff's] symptoms improve after passing gas and defecation.” (Tr. 351.)

         On January 6, 2014, Dr. Kordell Kennemer (“Dr. Kennemer”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 72-73.) Dr. Kennemer concluded that the limitations imposed by Plaintiff's mental impairments failed to meet or medically equal the criteria of listings 12.04 (affective disorders) or 12.06 (anxiety disorders).

         On January 7, 2014, Dr. Martin Kehrli (“Dr. Kehrli”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 73-74.) Based on his review of the record, Dr. Kehrli concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk about six hours in an eight-hour workday; and push and pull in accordance with his lifting and carrying restrictions. Dr. Kehrli added that Plaintiff does not suffer from any postural, manipulative, visual, communicative, or environmental limitations.

         On February 6, 2014, Dr. Moroye noted that Plaintiff was “still in the process of filing for disability for his pancreas issues though[] the workup through GI actually did come back looking okay.” (Tr. 234.) Dr. Moroye added that Plaintiff was still “doing the medical marijuana” to treat his chronic pain, that Plaintiff visited a doctor at Kaiser “for the first time in 10 years, ” and that the doctor at Kaiser provided Plaintiff with “a prescription for clonazepam, ” because the doctor “apparently” did not “ask him about any illicit drug use.” (Id.) In addition, Dr. Moroye stated the following: “Chronic pancreatitis. Again, the question is, is this still a major issue[?]” (Tr. 235.)

         On May 16, 2014, Dr. Joshua Boyd (“Dr. Boyd”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 84-85.) Dr. Boyd agreed with Dr. Kennemer's finding that Plaintiff's mental impairments failed to satisfy listings 12.04 or 12.06.

         Also on May 16, 2014, Dr. Martin Lahr (“Dr. Lahr”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 86-87.) Based on his review of the record, Dr. Lahr agreed with Dr. Kehrli's functional assessment in all relevant respects.

         On July 17, 2014, Plaintiff visited Dr. Moroye and reported that he continued to suffer from “intermittent pain, which does significantly limit his ability to really do anything.” (Tr. 320.) Dr. Moroye stated the following: “Again, he did get a workup last year through GI, who is not necessarily convinced that he had [a] chronic issue, though [Plaintiff] vehemently disagrees. I did talk[] to him about getting another opinion, but he does not want to pursue this further.” (Tr. 320.)

         On September 3, 2015, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 35-66.) Plaintiff testified that he lives with wife, he is able to drive, he last worked in September 2012, he stopped working because he experienced a flare-up of his pancreatitis that lasted two to three weeks and the flare-ups “became more persistent” thereafter, he received unemployment benefits after he stopped working because he thought he “might still be able to do some part-time work, ” and he can no longer work due to the flare-ups of his pancreatitis, which occur between three to fifteen days per month on average, lead to “severe pain” that “radiates through to the back, ” and cause issues with constipation and diarrhea. (Tr. 42-45.) Plaintiff added that oxycodone is effective in treating his flare-ups, he is no longer taking medication to treat depression or anxiety and has never engaged in any therapy, he does not experience any physical limitations unless there is a flare-up of pancreatitis, it took him roughly four weeks to recover from the most recent surgery on his left knee, and he has not smoked cigarettes or consumed alcohol (two pancreatitis triggers) for several years. (Tr. 45-47, 52, 55-56.) Plaintiff also clarified that he is “still down for a few days” after taking pain medication. (Tr. 54.)

         The ALJ posed a series of hypothetical questions to a Vocational Expert (“VE”) who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform light work that involves no more than “frequent climbing of ramps and stairs, climbing of ladders and scaffolds, stooping, kneeling, crouching, and crawling.” (Tr. 60.) The VE testified that the hypothetical worker could perform Plaintiff's past work as a service advisor as that position is generally performed in the national economy. (Tr. 61.) The VE further testified that the hypothetical worker could perform other work that exists in significant numbers in the national economy, including work as a cashier II, self-service store attendant, and mail room sorter. (Tr. 62.) Responding to the ALJ's second hypothetical, the VE confirmed that Plaintiff does not possess ...


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